Ford v. Rawlinson et al

Filing 57

MEMORANDUM DECISION AND ORDER granting 34 Motion to Dismiss for Lack of Jurisdiction; granting 38 Motion to Dismiss; granting 39 Motion to Dismiss; granting 41 Motion to Dismiss; denying 45 Motion to Strike; denying 46 Motion for Sanctions; granting 4 Motion to Dismiss for Lack of Jurisdiction; granting 21 Motion to Dismiss; granting 25 Motion to Dismiss; granting 30 Motion to Dismiss. DISMISSING re: 28 AMENDED COMPLAINT. Signed by Judge Larry M. Boyle. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
HAROLD FORD,
Case No. 1:11-cv-551-LMB
Plaintiff,
v.

MEMORANDUM, DECISION
AND ORDER

LOISE GENICE RAWLINSON, JOHN and
JACKIE SCOTT, Husband and Wife, THE
GENICE RAWLINSON REVOCABLE
TRUST, THOMAS C. MORRIS and
SHELLY H. COZAKOS, MICHAEL E.
DUGGAN and GREGG E. LOVAN, ROLF
KEHNE, ROBIN STARR, and BRYAN
K.WALKER,
Defendants.

This matter is before the Court on nine separate motions to dismiss for failure to
state a claim upon which relief can be granted, and for lack of jurisdiction. (Dkts. 4, 21,
25, 30, 34, 38, 39, and 41). The Court also has before it Plaintiff’s Motion to Strike (Dkt.
45) and Motion for Sanctions (Dkt. 46). Having reviewed the parties’ briefing and the
written record, the Court finds that oral argument will not aid in the decisional process
and issues the following Memorandum Decision and Order granting the Defendants’
motions to dismiss, denying Plaintiff’s motion to strike, and motion for sanctions, and
dismissing Plaintiff’s Amended Complaint (Dkt. 28) without prejudice.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
This lawsuit is the third in a series filed by Plaintiff regarding a dispute between
private parties over ownership interests in real property located at 23231 Freeze Out
Road, Caldwell, Idaho. Plaintiff claims that he purchased the property in 1967.
At some time after purchasing the property, Plaintiff apparently put the property up as
collateral for a Farmers Home Administration (FmHA) loan. It is unclear from the
record, but it appears that Plaintiff defaulted on those loan obligations and FmHA
foreclosed on the property. Thus, in January 1996, as part of a debt settlement, Plaintiff
“redeemed the property.”
However, because Plaintiff did not have sufficient funds to redeem the property
alone, he alleges that in exchange for provided a portion of the money to redeem the
property, Defendant Lois G. Rawlinson would hold the property “in common” with him.
Plaintiff acknowledges that one month prior to redeeming the property, he “quit claimed
the Freezeout Propety to [Rawlinson].” (Amended Complaint, Dkt. 3 at 14). In so doing,
Plaintiff claims that he and Rawlinson entered an “oral contract” they would hold the
property together, and benefit equally from any future sale. According to Plaintiff, until
April 1999, he and Rawlson resided at the property together. Then, Rawlson moved out,
and shortly thereafter, the ownership of the property came before the courts.

MEMORANDUM DECISION AND ORDER - 2

A.

2001 Lawsuit
In 2001, Plaintiff brought suit in state court against Defendants Lois Genice

Rawlinson, John Scott, Jackie Scott and The Genice Rawlinson Revocable Trust
(“Rawlinson Defendants”). Defendants Michael E. Duggan and Gregg E. Lovan
(“Duggan Defendants”) represented Plaintiff at trial, while Defendants Thomas C. Morris
and Shelly H. Cozakos (“Morris Defendants”) represented the Rawlinson Defendants.
(Defs.’ Motion to Dismiss, Dkt. 21-1 at 2; Defs.’ Motion to Dismiss, Dkt. 25-1 at 2.) In
March 2003, after a three day trial, judgment was entered against Plaintiff Harold Ford.
That court found that Ford had no ownership interest in the Freeze Out property and
dismissed the action with prejudice. (Defs.’ Motion to Dismiss, Dkt. 4-1 at 2.)
Thereafter, Plaintiff retained Defendant Rolf Kehne as appellate counsel. The
appeal was dismissed in 2004, apparently due to Kehne’s failure to timely file. (Def.’s
Motion to Dismiss, Dkt. 30-2 at 1.)
Accordingly, in July 2006, Plaintiff filed complaints with the Idaho Bar against the
Duggan Defendants for failing to diligently pursue records necessary to prove Ford’s case
at trial (Defs.’ Motion to Dismiss, Exht. A, Dkt. 21-2 at 1-2) and against Kehne for failing
to timely appeal. (Def.’s Motion to Dismiss, Dkt. 30-2 at 1).
On January 12, 2009, the Idaho State Bar Association notified the parties of the
Bar Counsel’s findings that Duggan violated Idaho Rule of Professional Conduct 1.3, and
that Lovan violated Idaho Rule of Professional Conduct 5.1. (Defs.’ Motion to Dismiss,

MEMORANDUM DECISION AND ORDER - 3

Exht. A, Dkt. 21-2 at 2). Defendant Kehne was also found by the Bar to have violated the
professional code of conduct. (Plaintiff’s Amended Verified Complaint ¶ 13, Dkt. 28;
Memo. in Support of Motion to Dismiss, Dkt. 30-1 at 1.)
B.

2009 Lawsuits
Shortly after the Idaho State Bar’s determination, Plaintiff initiated three lawsuits

in state court related to the Bar’s ethics findings (“2009 Lawsuits”). The first and second
action, both filed on March 11, 2009, were for professional malpractice against the
Duggan Defendants and Defendant Kehne. On May 28, 2009, the Ada County District
Court found the claims to be time-barred by the statute of limitations. Plaintiff appealed
the district court’s decision, but the Idaho Court of Appeals upheld the dismissal.
On April 27, 2009, Plaintiff brought a third lawsuit against the Rawlinson
Defendants, the Morris Defendants, and notary public Defendant Robin Starr. Defendant
Bryan Walker represented Starr in this action. (Def.’s Motion to Dismiss, Dkt. 34-1 at 2.)
As to the Rawlinson Defendants, Plaintiff alleged that they failed to turn over
discoverable documents, committed perjury, breached an oral contract, and engaged in a
fraud on the court. (Id.)
On September 25, 2009, the Canyon County District Court dismissed all the claims
against the Rawlinson and Morris Defendants as time-barred. (Pickens Aff. Exht. A, Dkt.
4-2 at 2.). Plaintiff’s claims that Starr violated her oath of office, and committed a fraud
upon the Court by inappropriately stamping her notary seal and falsifying a deed, were

MEMORANDUM DECISION AND ORDER - 4

dismissed on the pleadings. (Motion to Dismiss of Def. Bryan K. Walker, Dkt. 34-2 at 2).
Furthermore, the Court found that the claims were brought frivolously and awarded
$3,260.70 to the Rawlinson Defendants and $5,688 to Defendant Starr in reasonable costs
and attorney fees. (Picket Aff., Exht. B, Dkt. 4-2 at 5).
On March 10, 2011, the Court of Appeals for the State of Idaho affirmed the
district court’s dismissal with prejudice and directed that the district court award fees and
costs associated with the appeal. (Id., Exht. 3, Dkt. 4-2 at 1.) Plaintiff’s subsequent
Petition for Review to the Idaho Supreme Court was denied on April 19, 2011. The
district court awarded $2,320 to the Rawlinson Defendants, and $13,647.88 to the Morris
Defendants. (Picket Aff., Exht. D, Dkt. 4-2 at 1-2.)
C.

Current Complaint
In this instant action, Plaintiff largely duplicates or restates the claims he brought

in the 2001 and 2009 lawsuits. (Amended Verified Complaint (“Compl.”) ¶22, Dkt. 28.)
However, Plaintiff now seeks to invoke federal jurisdiction by referring to several federal
statutes, including 18 USC § 1512; 42 USC §§ 1983, 1985, 1986, and 1988, and Idaho R.
Civ. P. 60(b)(3). (Id. ¶ 11.) Unlike his previous lawsuits, Plaintiff also includes Defendant
Bryan Walker as a party, claiming that he aided his client in avoiding a deposition, and
that he lied under oath. (Id. ¶ 64-66.) It appears that all of Plaintiff’s remaining claims,
including his new claims of alleged fraud against the court and continuous damage tort,
were raised in at least one, if not all, of the 2009 lawsuits. (Id ¶ 11.)

MEMORANDUM DECISION AND ORDER - 5

Plaintiff addresses the statute of limitations issue by arguing that he qualifies for
equitable tolling because there are “extraordinary circumstances” which prevented him
from timely filing, and that he acted with reasonable diligence throughout the period to be
tolled. Plaintiff points out that New York law authorizes the use of equitable tolling when
a plaintiff has been induced by fraud or deception to refrain from filing a timely action.
(Plaintiff’s Motion to Strike ¶ 3, Dkt. 45-1.).
Most recently, Plaintiff filed a Motion for Sanctions and a Motion to Strike.
DISCUSSION
A.

Plaintiff’s Motion for Sanctions (Dkt. 46)
In his Motion for Sanctions, Plaintiff claims that the Duggan Defendants’ Motion

to Dismiss (Dkt. 21) was not properly served on him, and argues that these defendants
should be subject to sanctions because their failure to serve unnecessarily delayed these
proceedings and prevented him from adequately responding to the motion
When pleadings or motions are filed with the court, the filing party certifies that
the paper “is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation” and that “the claims,
defenses, and other legal contentions are warranted by existing law, or by a nonfrivolous
argument for extending, modifying, or reversing existing law or for establishing new
law.” Fed. R. Civ. P. 11(b). If the Court determines that Rule 11(b) has been violated, the
court may impose appropriate sanctions.

MEMORANDUM DECISION AND ORDER - 6

Federal Rule of Civil Procedure 5 contain the requirements for service of
pleadings made subsequent to the original complaint. Rule 5 states that proper service
includes “mailing it to the person’s last known address–in which event service is
complete upon mailing.” Fed. R. Civ. P. 5(b)(2)(C). In addition, District of Idaho Local
Civil Rule requires the moving party to “serve and file with any motion affidavits . .
.copies of all . . . documentary evidence and other supporting materials on which the
moving party intends to rely.” Dist. Idaho Loc. Civ. R. 7.1(b)(2).
In the instant action, the record reflects that Plaintiff was served with the motion
and the contested documents by United States Mail to his last known mailing address.
(Prusynski Aff. Dkt. 21-2 at 4.) In addition, in filing his motion for sanctions, Plaintiff
has responded to the motion, the affidavit, and the attached exhibits. This response
directly contradicts his argument that he is unable to respond. The evidence before the
Court clearly establishes that Plaintiff was properly served with the motion and
supporting documents, and that he had sufficient time to respond. Accordingly, Plaintiff’s
motion for sanctions is denied.
B.

Plaintiff’s Motion to Strike (Dkt. 45)
As with his motion for sanctions, Plaintiff requests that the Court strike the Dugan

Defendants’ Answer as being untimely and that their reliance on Stafford v. Morfitt1

1

Stafford v. Morfitt, CV-08-378-SBLW, 2009 WL 838780 (D. Idaho Mar. 29, 2009) aff’d sub
nom. Stafford v. Owyhee Vill. Inc., 457 Fed. Appx 666 (9th Cir. 2011).

MEMORANDUM DECISION AND ORDER - 7

(Prusynski Aff. Exht. B, Dkt. 21-2) constitutes a “sham pleading” and that it too should
be stricken. Plaintiff argues that Ninth Circuit Court of Appeals Rule 36-3, relating to
citation of unpublished opinions, precludes Stafford cannot be used as precedent because
it is still actively on appeal. Plaintiff also claims that Stafford is not relevant to this case
and its inclusion in the Dugan Defendant’s supporting affidavit is immaterial or
impertinent. (Motion to Strike, Dkt. 45)
Federal Rule of Civil Procedure 12(f) governs motions to strike, and provides that
“the court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent or scandalous matter.” Id. The Ninth Circuit has explained that
“[t]he function of a 12(f) motion to strike is to avoid the expenditure of time and money
that must arise from litigating spurious issues by dispensing with those issues prior to
trial.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880,885 (9th Cir. 1983). Immaterial
matter is that which has “no essential or important relationship to the claim for relief,”
and “[i]mpertinent matter consists of statements that do not pertain, and are not necessary,
to the issues in question.” Fantasy, Inc.v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)
(internal citations omitted), rev’d on other grounds, Fogerty v. Fantasy, Inc., 510 U.S.
517 (1994). However, a motion to strike an “allegedly legally insufficient, immaterial or
impertinent defense is not a favored motion by the courts.” United States v. Articles of
Food . . . Clover Club Potato Chips, 67 F.R.D. 419, 421 (D. Idaho, 1975) (“[A motion to
strike] will be denied if [it] has any relation to the subject matter of the controversy”);

MEMORANDUM DECISION AND ORDER - 8

Germaine Music v. Universal Songs of Polygram, 275 F.Supp.2d 1288, 1300 (D. Nev.
2003) (“Federal courts disfavor motions to strike unless it is clear that the matter to be
stricken could have no possible bearing on the subject matter of the litigation.”).
Procedurally, this case and Stafford v. Morffit are remarkably similar. The Stafford
case involved a boundary dispute that was brought in federal district court after being
dismissed by the state court. In federal court, the plaintiff brought claims of fraud against
the court and conspiracy, which are nearly identical to Plaintiff’s Amended Complaint
here. (Brief in Support of Petition for Review, Dkt. 45-1 at 1.) In the Stafford case, the
presiding federal judge persuasively addressed jurisdictional issues that are also present
here. Finally, because Stafford is a federal district court decision, Plaintiff’s contention
that Ninth Circuit rules prevent it from being considered is without merit because the rule
he relies upon relates only to citations to orders of the Ninth Circuit Court of Appeals.
Accordingly, Plaintiff’s Motion to Strike (Dkt. 45) is denied and the Duggan Defendants’
Motion to Dismiss (Dkt. 21) and supporting documentation, including the Stafford v.
Morfitt decsion, will be considered.
C.

Defendants’ Motions to Dismiss (Dkts.
1.

Subject Matter Jurisdiction

A Rule 12(b)(1) motion to dismiss challenges the subject matter jurisdiction of the
court to hear the claims presented to it. Federal courts are courts of limited jurisdiction
with no “inherent” subject matter jurisdiction; they can adjudicate only those cases that

MEMORANDUM DECISION AND ORDER - 9

the Constitution and Congress empower them to adjudicate. See Kokkonen v. Guardian
Life Ins. Co., 511 U.S. 375 (1994). Because a federal court cannot waive a lack of subject
matter jurisdiction, any party, including the court itself, can raise the issue of jurisdiciton
at any time. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-595
(9th Cir. 1996). The burden of establishing the appropriateness of the Court’s exercise of
jurisdiction lies with the party asserting jurisdiction. Kokkonen, 511 U.S. at 377.
Subject matter jurisdiction can be found through either diversity jurisdiction or
federal question jurisdiction. 28 U.S.C. §§ 1331-32. Diversity jurisdiction requires (1)
that no plaintiff is a citizen of the same state as any defendant; and (2) that the amount in
controversy be greater than $75,000. 28 U.S.C. § 1332. There is no dispute that in this
case the Plaintiff and all Defendants are citizens of Idaho. Thus, diversity jurisdiction
cannot exist. (See Amend Verified Complaint, Dkt. 28 at 2.)
United States district courts may exercise federal question jurisdiction in two
situations. Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083 (9th Cir.
2009). First, if a federal right is “‘an element, and an essential one, of the plaintiff’s
cause of action.’” Id. (quoting Gully v. First National Bank, 299, U.S. 109, 112 (1936)).
Second, jurisdiction is found if a state-law claim “necessarily raises a stated federal issue,
actually disputed and substantial, which a federal forum may entertain without disturbing
any congressionally-approved balance of federal and state judicial responsibilities.”
Grable & Sons Metal Prod., Inc. V. Darue Eng’g & Mfg., 545 U.S. 208, 314 (2005).

MEMORANDUM DECISION AND ORDER - 10

A federal question cannot be supplied by a defense, but must “be disclosed upon
the face of the complaint, unaided by the answer.” Phillips Petroleum Co. V. Texaco, Inc.,
415 U.S. 125, 127-28 (1974). The federal issue must be “a substantial one, indicating a
serious federal interest ....” Id. at 313.
In this instant action, none of the Plaintiff’s state-law claims raise a federal issue.
Thus, the question is whether Plaintiff’s invocation of federal statutes is sufficient to
support subject matter jurisdiction.
Generally, a suit will not be dismissed for failure to state a proper cause of action
on jurisdictional grounds. See Bell v. Hood, 327 U.S. 678, 682 (1946). The United States
Supreme Court has held that a claim alleged to arise under federal law should not be
dismissed for lack of subject matter jurisdiction if the dismissal depends on the
interpretation of federal law. Bell, 327 U.S. at 685 (“The right of the petitioners to recover
under their complaint will be sustained if the Constitution and laws of the United States
are given one construction and will be defeated if they are given another.”). In fact,
“where a complaint . . . seek[s] recovery for any wrong under under 28 U.S.C. § 1343, the
district court must assume jurisdiction over the subject matter [with limited exceptions.]”
Ouzts v. Maryland Nat. Ins. Co., 470 F.2d 790, 921-92 (9th Cir. 1972).
These limited exceptions provide that a federal court should dismiss a federal
question claim for lack of subject matter jurisdiction if: (1) “the alleged claim under the
Constitution or federal statutes clearly appears to be immaterial and made solely for the

MEMORANDUM DECISION AND ORDER - 11

purpose of obtaining jurisdiction;” or (2) “such a claim is wholly insubstantial and
frivolous.” Bell, 327 U.S. at 682-83 (cited by Leeson, 671 F.3d at 975).
The Ninth Circuit Court of Appeals has held that “[f]rivolous filings are those that
are both baseless and made without a reasonable and competent inquiry.” Buster v.
Greisen, 104 F.3d 1186, 1190 (9th Cir. 1997). To be considered baseless, an assertion of
subject matter jurisdiction must lack a factual foundation. Montrose Chem. Corp. of
California v. Am. Motorists Ins. Co., 117 F.3d 1128, 1133. Thus, a claim is frivolous
when an essential element of the claim is not alleged at all in the complaint. Jenkins v.
Rockwell Int’l Corp., 595 F. Supp. 399, 402 (D. Nev. 1984) (dismissing § 1983 and
§ 1985(3) claims for lack of jurisdiction when complaint failed to allege under color of
state law and class based discriminatory animus elements, respectively); Scott v.
Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) (dismissing first amendment privacy
claim where plaintiff failed “to allege more than a trivial or incidental interference with
his putative privacy interest”). Similarly, a claim is “wholly insubstantial and frivolous,”
even if specific federal statutes are invoked, if the connection between the allegedly
wrongful conduct and the deprivation of constitutional rights is “attenuated,” or when
claims “fail to allege the tortious violation of any federally protected right.” Franklin v.
State of Or., State Welfare Div., 662 F.2d 1337, 1343 (9th Cir. 1981).2

2

In the Franklin case, the court dismissed§ 1983 claims because the defendants enjoyed
immunity from those claims.
MEMORANDUM DECISION AND ORDER - 12

On the other hand, any “non-frivolous assertion of a federal claim suffices to
establish federal question jurisdiction.” Cement Masons Health and Welfare Trust Fund
for Northern California v. Stone, 197 F.3d 1003, 1008 (9th Cir. 1999); But see McBride
Cotton & Cattle Corp. V. Veneman, 290 F.3d 973, 981 (9th Cir. 2002) (“The mere
allegation of a . . . violation is not sufficient to provide subject matter jurisdiction. Rather,
the plaintiff must allege facts sufficient to state a violation.”). When considering this
issue, all of a plaintiff’s allegations should be taken as true, and if any of the allegations,
regardless of how unlikely their proof, would state a non-frivolous claim, then the court
must have jurisdiction. Franklin, 662 F.2d at 1347.
Finally, “when a federal court concludes that it lacks subject-matter jurisdiction,
the court must dismiss the complaint in its entirety.” Arbaugh v. Y&H Corp., 546 U.S.
500, 514 (2006) citing 16 Moore § 106.66[1], pp. 106-88 to 106-89. The Ninth Circuit
Court of Appeals has noted:
“Nothing is to be more jealously guarded by a court than its jurisdiction. Jurisdiction
is what its power rests upon. Without jurisdiction, it is nothing. Especially at a time
when the burden of litigation in federal courts reaches a peak thought improbable only
a few years ago, it is imperative that any attempt to impose upon federal jurisdiction
by pleadings without legal justification must be vigorously discouraged.”
In re Mooney, 841 F.2d 1003, 1006 (9th Cir. 1988). If the court cannot dismiss the
complaint for lack of jurisdiction, then it must consider the merits of the complaint in
ruling on a motion to dismiss for failure to state a claim, as governed by Rule 12(b)(6).

MEMORANDUM DECISION AND ORDER - 13

a.

Analysis

Plaintiff seeks to invoke federal question jurisdiction “pursuant to 18 U.S.C.
§ 1512, 42 USC §§ 1983, 1985, 1986, and 1988,”3 as well as “Idaho Rule of Civil
Procedure 60b Subdivision 3.” (Complaint, Dkt. 28 at 3.) As explained more fully below,
each of Plaintiff’s invocations of jurisdiction are factually unsupported.
Plaintiff first invokes jurisdiction under 18 U.S.C. § 1512, which makes tampering
with a witness, victim, or informant a federal crime. However, private rights of action
brought under this statute are not recognized. See, e.g., Thomas v. Bryant, C09-5189RBL, 2009 WL 2473662 (W.D. Wash. Aug. 7, 2009) (citing Gipson v. Callahan, 18
F.Supp.2d 662, 668 (W.D.Tex.1997)). Thus, Plaintiff’s invocation of jurisdiction
pursuant to 18 U.S.C. § 1512 is inadequate because there is no possible relief Plaintiff
could gain under this statute.
Next, Plaintiff invokes the provisions of 42 U.S.C. § 1983. To establish a claim
under § 1983, a plaintiff must allege constitutional violations, and that the defendant was
acting “under color of state law.” See Jenkins v. Rockwell Int’l Corp., 595 F. Supp. 399,
402-03 (D. Nev. 1984). When a plaintiff brings a § 1983 action against “one who does
not act under color of state law, ‘the claim is not coming within the jurisdiction of the

3

There can be no meaningful dispute that 42 U.S.C. § 1986, which extends § 1985 liability to
parties who knew about, but did not participate in, a conspiracy; and 42 U.S.C. § 1988, which provides
for the award of fees for a successful claim under 42 U.S.C. §§ 1981, 1981a, 1982, 1983, 1985, and 1986,
provide no jurisdictional basis for any claim. Accordingly, the Court’s analysis addresses only 42 U.S.C.
§§ 1983 and 1985 as jurisdiction can only be legitimately claimed under those sections.
MEMORANDUM DECISION AND ORDER - 14

district court.’” Franklin I, 662 F.2d at 1345. Thus, it is axiomatic that § 1983 actions
cannot be sustained against private parties. See Civil Rights Cases, 109 U.S. 3 (1883).
Here, all the defendants are either private parties or retained counsel for those
private parties.4 As a result, because they are private parties not acting under color of state
law, all these Defendants are immune from any § 1983 claim. Id. Because there is no
possibility that any relief could be granted to the Plaintiff under § 1983, this Court finds,
and thus concludes, that § 1983 is insufficient to confer jurisdiction. Accordingly, those
claims will be dismissed.
Plaintiff also invokes jurisdiction under 42 U.S.C. § 1985. A claim under § 1985
requires an allegation that the defendants’ conduct was motivated by racial or other class
based invidiously discriminatory animus. United Broth. Of Carpenters & Joiners v. Scott,
463 U.S. 825, 827 (1983). Here, Plaintiff does not allege any discriminatory animus in
his complaint. Accordingly, Plaintiff’s § 1985 claim is without merit and is insufficient
to support jurisdiction and will be dismissed accordingly.
Finally, Plaintiff raises jurisdiction under Idaho Rule of Civil Procedure 60(b)(3).
However, it is well-settled that state law cannot by itself convey jurisdiction on a federal
court. See, e.g., Jenkins v. Rockwell Int’l Corp., 595 F. Supp. 399, 403 (D. Nev. 1984)
(“A provision of the Nevada Constitution cannot confer jurisdiction on the federal
court.”). Even if the statute could convey jurisdiction to a federal court, Plaintiff’s claims
4

Retained or appointed counsel are not considered to act under color of state law. Franklin I,
662 F.2d at 1345, quoting Szijarto v. Legeman, 466 F.2d 864 (9th Cir. 1972).
MEMORANDUM DECISION AND ORDER - 15

of fraud on the court are not “necessarily dependant on resolution of a substantial
question of federal law.” Grable & Sons Metal Prod., Inc., 545 U.S. at 314. Accordingly,
the Court is without subject matter jurisdiction.
Accordingly, all of Plaintiff’s claims against these Defendants in this action are
dismissed for lack of subject matter jurisdiction.
D.

Alternative Grounds for Dismissal
1.

Res Judicata and Full Faith and Credit

All Defendants in this action argue that Plaintiff’s claims are barred by res judicata
and full faith and credit. These arguments are based on the contention that Plaintiff has
already litigated his claims in state court. Defendants further contend that the Idaho
Court of Appeals has already ruled against Plaintiff on these very same claims.
Plaintiff counters that he has brought new claims not previously considered, those
being fraud on the court and continuing tort.
The doctrine of res judicata bars a party from “relitigating issues that were or could
have been raised” in an action if there has already been a final judgment on the merits.
Allen v. McCurry, 449 U.S. 90, 94 (1980). Federal courts adhere to this doctrine, even if
the underlying final judgment is a state court judgment, in order to “reduce unnecessary
litigation,” allow for reliance on adjudication, and also “promote the comity between state
and federal courts that has been recognized as a bulwark of the federal system.” See id. at
95-96. Further, the Ninth Circuit Court of Appeals has held the Full Faith and Credit Act

MEMORANDUM DECISION AND ORDER - 16

requires that federal courts “give the same preclusive effect to a state-court judgment as
another court of that State would give.” Palomar Mobilehome Park Assn. v. City of San
Marocs, 989 F.2d 362, 364 (9th Cir. 1993). Therefore, a court should apply the state’s res
judicata law, of the state where the district court is located to determine if an action
should be dismissed on preclusion grounds. See id.
In addition, the relevant res judicata state law in Idaho controls both claim
preclusion and issue preclusion. Ticor Title Co. V. Stanton, 157 P.3d 613, 617 (Idaho
2007). In order for “claim preclusion to bar a subsequent action there are three
requirements: (1) same parties; (2) same claim; and (3) final judgment.” Id. at 618. The
“same parties” requirement include a party’s privy, a person who derives “his interest
from one who was a party to” the underlying judgment. Id. The “same claim”
requirement includes “every matter which might and should have been litigated in the
first suit.” Id. at 620. This definition encompasses “all claims arising out of the same
transaction or series of transactions out of which the cause of action arose.” Id. Therefore,
it necessarily follows that the “final judgment” requirement does not require that “the
precise point or question in the present action be finally resolved in the prior proceeding.”
Id. Rather, there has to be a final judgment in the prior litigation on the merits, and if the
matter in the current action is one that could have been litigated in the prior suit, the final
judgment covers that matter as well. See id. Finally, “ for res judicata purposes a dismissal on
statute of limitations grounds can be treated as a dismissal on the merits.” In re Marino, 181 F.3d

MEMORANDUM DECISION AND ORDER - 17

1142, 1144-45 (9th Cir. 1999), citing Ellingson v. Burlington Northern Inc., 653 F.2d 1327, 1330
(9th Cir.1981); see also Suckow Borax Mines Consol., Inc. v. Borax Consol., Ltd., 185 F.2d 196,
205 (9th Cir.1950).
In this case, Plaintiff has litigated many of the same claims against the same
defendants and received final adverse judgments from Idaho state courts. Because of the
fact that he has not been a party to Plaintiff’s prior lawsuits, only Defendant Bryan
Walker cannot be dismissed on res judicata grounds. Whether there is privity between
Walker and Defendant Robin Starr, whom he represented in the previous litigation, is a
question of fact that cannot be considered at the 12(b)(6) stage.5
The instant action involves the same parties, the same claims, and a final judgment
on the merits regarding all defendants, except for Defendant Bryan Walker. As to the
Rawlinson Defendants, Plaintiff has brought the claims regarding the disputed property in
two prior cases and the claims regarding a “fraud on the court” in one previous case. The
2001 lawsuit regarding owner interest in the property was dismissed with prejudice in
March 2003. The 2009 litigation against the Rawlinson Defendants, Morris Defendants,
and Defendant Robin Starr, which contained the same claims that are presented in this
current complaint, was dismissed with prejudice in September 2009 as being barred by
the statute of limitations. The Duggan Defendants and Defendant Kehne had suits similar

5

However, all of Plaintiff’s state law claims are pendant to his federal claims. As such, because
the federal claims are dismissed, all pendant state law claims are also dismissed, including claims against
Walker.
MEMORANDUM DECISION AND ORDER - 18

to the current case brought against them in 2009 that were also determined to be barred by
the statute of limitations and were likewise dismissed in May 2009.
In sum, the parties in this case are identical to the parties in the previous legal
actions and litigation. The claims brought by Plaintiff were nearly identical, or at the very
least arose out of the same set of facts, and there were final judgments on the merits.
Accordingly, Plaintiff’s claims are barred based on res judicata and full faith and credit.
2.

Statute of Limitations

Defendants next contend that Plaintiff’s complaint should be dismissed on the
basis of expiration of the statute of limitations period. They argue that the § 1983 actions
are subject to Idaho’s statute of limitations for personal injury actions, and that the twoyear limitation period has expired. Plaintiff responds claiming that the statute of
limitations should be tolled because of a continuous tort arising from ongoing damages
and fraud.
With the exception of § 1986, the applicable statute of limitations in a civil rights
cause of action is determined by the law of the state where the district court is located and
the action arose. Hoffman v. Halden, 268 F.2d 280, 304-05 (9th Cir. 1959), overruled on
other grounds by Cohen v. Norris, 300 F.2d 24, 29-30 (9th Cir. 1962). By contrast, a
§ 1986 claim has a one year statute of limitations period. Id. at 304.
Section 1983 claims are subject to the state statute of limitations for personal
injury actions because such claims are analogous to actions for injuries to personal rights.

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Samuel v. Michaud, 980 F. Supp. 1381, 1410 (D. Idaho 1996) (citing Wilson v. Garcia,
471 U.S. 261 (1985)). In personal injury cases, the applicable Idaho statute of limitations
is two years. Idaho Code § 5-219(4). At most, Idaho’s catch-all statute of limitations of
four years would bar Plaintiff’s claims after that period.
While state law determines the statute of limitations applied to civil rights actions,
federal law controls when the claim accrues. Olsen v. Idaho State Bd. Of Medicine, 363
F.3d 916, 926 (9th Cir. 2004). A civil rights claim accrues “when the plaintiff knows or
has reason to know of the injury which is the basis of the action.” Id., quoting TwoRivers
v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). A plaintiff cannot defeat the statute of
limitation by arguing that each separate wrongful act in furtherance of a conspiracy
restarts the statute of limitations. See Samuel, 980 F. Supp. at 1411 (“To permit [a
plaintiff] to wait and toll the running of the statute simply by asserting that a series of
separate wrongs were committed . . . would . . . defeat the purpose of the time-bar.”).
In this case, the Plaintiff’s injuries arose out of the 1999 property dispute. All of
Plaintiff’s fraud and conspiracy claims assert that Defendants are attempting to perpetuate
and cover-up the alleged civil rights deprivations that arose from those disputes and the
state court decisions concerning those disputes. Plaintiff claims that because there is an
on-going conspiracy the statute of limitations should not bar his claims. However, the
Plaintiff’s injuries all arise from certain specific events, namely, the decisions in the
property disputes. Therefore, the Court finds, and thus concludes, that Plaintiff knew or

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should have known of these adverse rulings no later than the last Idaho Supreme Court or
Court of Appeals decision concerning the dispute. The subsequent alleged continuing
torts do not toll the statute of limitations because there are no new injuries or damages to
the plaintiff.
Thus, the statute of limitations began to run, at the latest, in November 2004 when
the Supreme Court of Idaho dismissed Plaintiff’s appeal due to Defendant Kehne’s
alleged failure to timely file an appeal. Plaintiff clearly acknowledges that he was aware
of the adverse ruling on his case soon after that time because he filed complaints with the
Idaho State Bar regarding that representation. Consequently, even assuming the most
favorable statute of limitations period–four years–these civil rights actions were timebarred as of November 2008.
Accordingly, all the Plaintiff’s Title 42 civil rights claims are barred by the
applicable statute of limitations. To the extent the Plaintiff is attempting to assert state
law claims through the use of 42 U.S.C. § 1988, those claims also fall within this statute
of limitations bar.
E.

Conclusion
The Court is without subject matter jurisdiction to hear Plaintiff’s claims.

Accordingly, Plaintiff’s Amended Complaint. (Dkt. 28) is dismissed.. Further, because
Plaintiff’s state law claims would be barred by res judicata, and his federal claims would

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be barred by the applicable statute of limitations, the Court concludes that amendment of
the Complaint would be futile and will dismiss his federal claims with prejudice.
ORDER
It is hereby ORDERED:
1.

Plaintiff’s Motion to Strike (Dkt. 45) is DENIED;

2.

Plaintiff’s Motion for Sanctions (Dkt. 46) is DENIED;

3.

Defendants Lois Genice Rawlinson, John Scott, Jackie Scott, and The
Genice Rawlinson Revocable Trust’s Motion to Dismiss (Dkts. 4, 41) is
GRANTED;

4.

Defendants Michael E. Duggan and Gregg E. Lovan’s Motion to Dismiss
(Dkt. 21) is GRANTED;

5.

Defendants Shelly H. Cozakos and Thomas C. Morris’s Motion to Dismiss
(Dkts. 25, 39) is GRANTED;

6.

Defendant Rolf Kehne’s Motion to Dismiss (Dkts. 30, 38) is GRANTED;

7.

That Defendant Bryan Keith Walker’s Motion to Dismiss (Dkt. 34) is
GRANTED; and

8.

Plaintiff’s Amended Complaint (Dkt. 28) is DISMISSED with prejudice.

DATED: August 30, 2012.

Honorable Larry M. Boyle
United States Magistrate Judge

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